U.S. court rejects right-to-die appeal

U.S. court rejects right-to-die appeal Wed Mar 23, 2005 8:58 AM GMT Printer Friendly | Email Article | RSS

ATLANTA (Reuters) - A U.S. court has rejected an appeal by the parents of brain-damaged Florida woman Terri Schiavo who had asked that their daughter's feeding tube be reinserted, according to an opinion issued today.

As Schiavo lay for a fifth day without food or water on Wednesday, the 11th Circuit Court of Appeals acknowledged the "absolute tragedy that has befallen Mrs. Schiavo".

Schiavo's parents, Bob and Mary Schindler, had asked the appeals court to overturn a lower court's rejection of their bid to have the feeding tube reinserted.

The Schindler's attorney, David Gibbs, had told the court Schiavo was "fading quickly" and death was imminent.

A lawyer for her husband, Michael Schiavo, who maintains she had said she would prefer to die rather than be kept in a persistent vegetative state, had argued that reinserting the feeding tube would infringe on his wife's rights.

"We agree (with the lower court) that the plaintiffs have failed to demonstrate a substantial case on the merits of any of their claims. We also conclude that the district court's carefully thought out decision to deny temporary relief in these circumstances is not an abuse of discretion," Judges Ed Carnes and Frank Hull wrote in the majority opinion.

Judge Charles Wilson dissented, saying: "Theresa Schiavo's death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of plaintiffs' constitutional claims."

Schiavo's feeding tube was disconnected on Friday under a state court order. Doctors say the 41-year-old woman would likely live for one to two weeks without it.

Schiavo was left in a persistent vegetative state by cardiac arrest that starved her brain of oxygen in 1990. State courts have consistently sided with Michael Schiavo's view that she would not have wanted to be kept alive.

The case has galvanised the Christian right and prodded the Republican-led U.S. Congress to pass a special bill to keep her alive.

Michael Schiavo's lawyer, George Felos said both sides were likely to pursue their appeals all the way to the U.S. Supreme Court.

The order to disconnect the tube followed a seven-year legal battle between Michael Schiavo and the Schindlers, whose determination to keep their daughter alive has become a cause celebre for evangelical Christians, anti-abortion activists and conservative lawmakers.

Fierce lobbying in Washington had brought the U.S. Congress scrambling back from Easter recess to pass the special law allowing the Schindlers to take their fight into the federal courts. U.S. President George W. Bush cut short a Texas vacation to return to the White House to sign it.

Michael Schiavo has criticised the Bush administration for interfering in a family affair, civil rights groups have deplored it and opinion polls show most Americans believe Congress was wrong to get involved.

Senate Majority leader Bill Frist, a Tennessee Republican, wrote to Florida Governor Jeb Bush, the president's brother, urging him to pressure the Florida state legislature to pass a similar law.

Florida lawmakers in 2003 passed a hastily drawn up law allowing Jeb Bush to intervene when Schiavo's feeding tube was removed then. That law was eventually found to be unconstitutional.

Mary Schindler also appealed to state senators to act after they rejected a bill proposed by the lower house to protect Schiavo last week, under apparent pressure from elderly constituents who do not want government interference in their "end-of-life" decisions.

"For the love of God, I'm begging you please don't let my daughter die of thirst," she said.

The Democrat's theme song this time is - Mr Schiavo is exercising his rights under rules of Common Law.

According to the Amendment VII of the US Constitution which all judges should be well acquianted with, common law trials should be by jury.

Here's what the amendment says:

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Also the liberal democrats and heir cohorts are complaining why Congress got involved.

Amendment X says that The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

I interpret this to mean that if the law is not in the constitution, is it then is reserved to the different states to make it a law or to the people. The Congress represents the people in their quest to make laws.

Please note that there is an "or" between states and people, therefore the states and people are similar but different entities. If the word would have been "and" and it would be inclusiveness.

So what are the democrats complaining about?

Also I take exception to the Federal Courts that have taken over the case.

Have they really looked deep into the case and delved into what really is the situation? That Federal Judge in Florida, did he really look and read all the transcripts to make an honest decision. Furthermore did he really consider those statements of the care givers? With the time he allocated, it is not possible for any one judge to really get acquainted to all the facts.

Just like Pilate, who he did was to wash his hands.

Then you have the 3 judge panel, did they do the same? What good is an appeals court if that court does not consider all the facts - and just limit themselves to perhaps what the trial court had summarized.

In my book that is not an appeals court. Maybe that's what our court system is all about just look and consider what they want to see.

I believe it is about time that the Senate exercises its "advice and consent" function which have been missing so far when regards to the judiciary. The constitution does not state that the advice and consent function should deal only with the executive branch.

Of course the liberals will complain bitterly, when the Senate exercises this function. There is a dying woman who deserves her day in court and that is not being provided.

Is there a lawyer in the house who can shed some clarification on this?

I had a bad feeling about this from the time I found out that the Legislature was "assuming" that any reasonable court would restore nutrition to Terri, since it wouldn't make any sense for them not to do so since obviously Terri would die before the case was properly handled and due process given by a federal court.

But three of four judges have now shown that that assumption was wrong.

In my heart and mind, I believe Terri should indeed have been given another chance in spite of the State courts rulings for two reasons. One, she didn't have a living will, and two, because there is a conflict of interest since her husband has moved on to another woman.

Tom Delay said he didn't think much of Michael Shiavo as a man, and I certainly concur with him on that.

The spirit, intent, and common sense of the legislature in this matter is so far wasted on these courts. Three lawyers have decided they can simply ignore the overwhelming majority opinion of the House, the Senate, and the President of the United States, and in so doing, condemn a woman who has committed no crime to death.

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